( Being an appeal from the judgment and decree of the Honourable Chief Magistrate P.N Gesora delivered on 11/04/2024 in Makueni CMCC NO. E154 OF 2021)
JUDGMENT
Introduction
1. The Respondent/Plaintiff filed a suit at the subordinate court alleging that he sustained injuries on 05/11/2020 following a road traffic accident. He alleged that he was a lawfully riding Motor Cycle Registration Number KMFG 744Z along Wote – Machakos Road when the Appellant drove, managed and/or controlled Motor Vehicle Registration Number KCG 010F negligently and carelessly that he caused it to violently knock down the Plaintiff. As a result, the respondent sustained a fractured midshaft right femur, fractured right tibia plateau, multiple cut wounds on the right knee and a frictional burn wound on the right ankle.
2. The appellant denied the occurrence of the accident and pleaded that if the same did occur, it was attributed to the respondent’s negligence. He further reiterated the same in his counter clam and relied on the principle of subrogation, doctrine of res ipsa loquitor and vicarious liability.
3. At the end of the hearing, the trial magistrate apportioned liability at 70:30 in favour of the Plaintiff, awarded Kshs. 1,200,000.00 as General damages, less 30% liability it becomes Kshs. 840,000.00, Awarded Future Medical expenses of Kshs. 200,000.00 and lastly awarded Special damages of Kshs. 5,550.00
4. Aggrieved by the trial court’s finding, the appellant is challenging the judgment on the following grounds:
a) That the Learned Trial Magistrate erred in law and in fact in failing to find that the Respondent did not discharge his evidential burden of proof of his allegation as is required under Section 107 of the Evidence Act thus arriving at an erroneous finding that the Appellant was to be blamed for the Accident.
b) That the Learned Trial Magistrate erred and misdirected himself in law and in fact and misapplied the evidence of parties on how the accident giving rise to the primary suit occurred thereby arriving at a wrong finding on liability between the Appellant and the Respondent.
c) That the learned trial Magistrates erred in law and in fact by completely failing to consider the Appellant’s evidence and that of his witnesses on liability and submission on proof of negligence hence coming to the erroneous finding on liability of 30% as against the Respondent and 70% as against the Appellant and in effect breaching the Appellant’s constitutional rights of access to justice and fair hearing .
d) That the learned trial magistrate erred in law and in fact in finding that the Respondent was entitled to general damages of Kshs. 1,200,000.00 which was overly excessive, arbitrary, and inordinately high in view of the injuries suffered by the Respondent that it presented a miscarriage of justice.
e) That the learned trial magistrate erred in law and in fact by failing to consider the Appellant’s submission and judicial authorities on quantum thereby arriving at an erroneous figure on quantum .
f) That the learned trial magistrate erred in law and in fact by failing to consider conventional awards for general damages in cases of similar injuries and awarded general damages in for pain and suffering which were excessive and punitive to the Appellant.
g) That the learned trial magistrate erred in law and in fact in relying solely on the Respondent’s medical documents in making an award of Kshs. 200,000.00 future medical costs which was inordinately high and without justification.
h) That the learned trial magistrate erred in law and in fact in dismissing the Appellants’ counterclaim despite the same having been warranted and duly proved in line with section 107 of the Evidence Act and all tenets of the law as regards subrogation claim.
i) That the learned trial magistrate grossly misdirected himself in ignoring the principles applicable and relevant authorities on liability, quantum and subrogation claims cited in the written submissions of the Appellant which are binding upon the court vide the principle of judicial precedents and the doctrine of stare decisis .
j) That the learned trial magistrate erred in law and in fact by failing to consider all the averment made in the Appellant’s pleadings in response to the Plaint, thereby reaching wrong conclusions of the law and fact.
k) That the learned trial magistrate failed to adequately evaluate the evidence and exhibits on record thereby arrived at an unsustainable decision .
5. The appellant while anchoring on the submissions filed in the trial court sought to have the appeal allowed, the judgement of the trial court with regards to the finding on liability and quantum be set aside in its entirety and this court to dismiss the Respondent’s suit with costs while primarily stating that should the Court find the Appellant liable to some extent, then the general damages can be reduced to Kshs. 700,000.00 and the award on future medical expenses be reduced to 75,000.00, and that the revised awards should be subjected to fresh liability apportioned by the court.
6. The Appellant submitted that the Respondent while ferry a passenger attempted to overtake a lorry which was in front of him and ended up colliding head on with the Appellant’s vehicle which was in its lawful lane. Further a witness who testified as DW2 buttressed the above.
7. The Appellant relied on several cases as follows: Mombasa Maize Millers & Another v Elius Kinyua Gicovi [2021] KEHC 1105 (KLR), Mumbi M'Nabea v David M. Wachira [2016] KECA 773 (KLR), Selle and Another v Associated Motor Boat Co. Ltd [1968] EA 123, Peter Omolo v Match Masters Limited [2017] KEHC 2478 & Cecilia W. Mwangi & Another v Ruth W. Mwangi [1997] KECA 62 (KLR )
8. That upon this matter being slated for judgement on the 21 st day of July, 2026 the Appellant moved this Honourable Court with an Application dated the 21 st day of July, 2026 seeking for prayers inter alia that the judgement on liability delivered by Hon. Lady Justice Teresia M. Matheka on 13 th July, 2026 in Makueni HCCA E026 of 2024 Elijah Mwangi Maina vs Dorcas Mbinya Mulwa & 2 Others be applied and adopted as the judgement of Honourable Court on the issue of liability as between the Appellant and Respondent and consequently the liability be apportioned at 25% as against the Appellant and 75% as against the Respondent. It is deponed that the circumstances in both cases arise from the same facts.
9. The Respondent submitted that the Appeal be dismissed with costs and relied on the following authorities Selle v. Associated Motor Boat Co. Ltd, Peters v. Sunday Post Ltd, Mwangi & another v Wambugu [1984] KECA 13 (KLR), Simon Taveta v Mercy Mutitu Njeru [2014] KECA 755 (KLR) , Francis K. Righa v Mary Njeri (Suing as the Legal Representative of the Estate of James Kariuki Nganga [2014] KEHC 3611 (KLR), Equator Distributors v Joel Muriu & 3 Others [2018] KECA 53 (KLR), Savannah Hardware v EOO (Suing As representative of SO (deceased) [2019] KEHC 269 (KLR ) and other case laws which the court has carefully perused.
10. In respect to the recent application filed by the Appellant dated the 21 st July, 2026 the Respondent has filed a Replying Affidavit dated the 22 nd July, 2026 where he opposed the prayers being sought by the Appellant and requested for the dismissal of the said application.
Analysis & Determination
11. This being a first appeal it is the duty of this court to re-assess and re-analyse the evidence that was adduced before the trial court and come to its own Judgment in line with the decision in the case of Selle & Another –vs- Associated Motor Boat Co. Ltd. & Others [1968] EA 123 in the following terms:
“I accept counsel for the respondent’s proposition that this court is not bound necessarily to accept the findings of fact by the court below. An appeal to this court from a trial by the High Court is by way of retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular, this court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally (Abdul Hammed Saif –vs- Ali Mohamed Sholan (1955), 22 E.A.C.A. 270).”
12. I have read through the Record of Appeal dated the 30 th July, 2025 and Supplementary record of Appeal dated the 7 th October, 2025 in consideration of the grounds set out in the Memorandum of Appeal and find the issues for determination being:
a) Whether the application dated the 21 st July, 2026 is proper before the Honourable Court?
b) Whether the apportionment of liability was proper.
c) Whether special damages awarded were based on wrong consideration.
d) Whether the general damages awarded are excessive in the circumstances of this case.
e) Whether the trial court should have considered the doctrine of subrogation relied on by the Appellant in his counter-claim?
13. On the first issue, the application before the Court was filed on the date scheduled for delivery of judgment and seeks an order that this Court adopts the judgment rendered in a separate suit. It is common ground that the proceedings and judgment sought to be adopted do not form part of the record of appeal and that the two matters were never consolidated before the trial court. The law is settled that a first appellate court is confined to determining an appeal on the basis of the record transmitted from the trial court.
14. In Okeno v Republic [1972] EA 32 , the Court held that the duty of a first appellate court is to reconsider and evaluate the evidence that was before the trial court and arrive at its own independent conclusions. Likewise, in Selle & Another v Associated Motor Boat Co. Ltd & Others (Supra ) , the Court emphasized that an appellate court's re-evaluation is limited to the evidence on the record.
15. The position has recently been reaffirmed in Be Energy Limited v Dorine Emily Akinyi Okeno t/a Regold Etipet Enterprises (Civil Appeal E213 of 2023) [2024] KEHC 7616 (KLR ) , where the High Court held that an appeal is determined on the record before the appellate court and that material not forming part of the proceedings in the subordinate court can only be introduced in accordance with Section 78 of the Civil Procedure Act and Order 42 Rule 27 of the Civil Procedure Rules .
16. The Supreme Court in Mohamed Abdi Mahamud v Ahmed Abdullahi Mohamed & 3 Others [2018] eKLR further held that additional evidence on appeal is only admissible in exceptional circumstances and should not be used to fill gaps in a party's case or introduce a fresh case on appeal.
17. In the present case, the applicant has not sought leave to adduce additional evidence in accordance with the law, nor has the statutory threshold been demonstrated. Instead, the Court is invited to adopt a judgment rendered in a separate proceeding whose pleadings, evidence and proceedings are absent from the record of appeal.
18. The adoption of the determination in HCCA No. E026 of 2024, as is would present a major challenge and hurdle to the just determination of the appeal before this court. It cannot be gainsaid that this appeal ought to have been presented before the appellate court in HCCA No. E026 of 2024, so that the court would have the benefit of considering the evidence together. That would have permitted the appellate court to consider whether to consolidate the appeals and consider the respective evidence in totality and make an appropriate finding.
19. As stated by the Respondent, the pillion passenger is the Plaintiff and witness in HCCA No. E026 of 2024. The rider who is the Respondent was the Plaintiff in HCCA No. E051 of 2024. Interestingly, the rider did not give evidence in support of the passenger and the passenger equally never gave evidence in the suit filed by the rider. The trial court, though the same, but proceeding differently made its determination, attributing 30% liability upon the rider and 70% liability upon the driver of the motor vehicle.
20. It is thus certain that though the trial court arrived at the same liability on the two suits, the evidence adduced was not the same. As already alluded to herein above, the Record of Appeal and judgment the subject of this appeal revolves around the proceedings leading to HCCA No. E051 of 2024 only. To then proceed and adopt the outcome in HCCA No. E026 of 2024 would be convenient but improper as this court would have determined the appeal on the basis of the evidence not before it.
21. The question that the court in this matter needs to determine is whether to be guided by the determination made by my sister in the file HCCA No. E026 of 2024 and to apply the same reasoning in the present appeal. During the brief submissions made by the parties herein after the filing of the Notice of Motion dated 21 st July 2026, the Respondents Advocates vehemently opposed the adoption of the liability by the appeal court in HCCA No. E026 of 2024 to apply to this matter and specially because the parties in the matters are different and did not testify in both matters.
22. In addition, the two appeals relate to the same accident. The trial court considered the circumstances in the two matters and came to the same determination on liability. Both files have now become the subject of separate appellate proceedings.
23. Secondly, I have also taken note of the proceedings and evaluation of the facts of the accident that gave rise to the present suits. The appellate court took time re-evaluate the evidence adduced before the trial court and made a determination that liability be apportioned in the ratio of 25:75 in favour of the Defendant in the suit the subject of the appeal in HCCA No. E026 of 2024 . The present Appellant is also the Appellant in HCCA No. E026 of 2024 . The Plaintiff in CMCC No. E156 of 2021 , was the pillion passenger on the motor cycle driven by the present Respondent, who was the Plaintiff in CMCC No. E154 of 2021 . The present Plaintiff was found to be 30% responsible in the primary suit and the Defendant, the driver of the motor vehicle was held 70% liable. The appeal proceedings in HCCA No. E026 of 2026 have thus flipped the responsibility upon the Respondent, from 30% to 75%.
24. Be that as it may, I have considered the evidence of the Respondent in the primary suit. He states that he was riding motor cycle registration number KMFG 744Z on 3 rd November 2020 along the road headed to Wote town from Mukuyuni. It was on a straight stretch of the road. A lorry was from the opposite direction and he saw it about 100 meters away. It was at 6.30 pm and his lights were on. It was not dark as yet. He then saw the motor vehicle that overtook the lorry about 50 meters before the accident occurred. He tried to swerve to avoid the accident. The police abstract prepared after the accident showed he was blamed for the accident had he was to be charged for causing the accident. At the time of the trial however, the police officer who testified stated that the matter was still pending under investigations.
25. I have also considered the evidence of the defence, especially DW2. The said evidence shows that the Respondent caused the accident while attempting to overtake another unknown motor vehicle. The Officer thus blamed the rider for the accident.
26. In determining liability in road traffic accident, I am guided by the rationale in the Court of Appeal case of Michael Hubert Kloss & Another v David Seroney & 5 Others [2009] eKLR , where the court stated thus:
“The determination of liability in a road traffic case is not a scientific affair. Lord Reid put it more graphically in Stapley v Gypsum Mines Ltd (2) (1953) AC 663 at p. 681 as follows:
“To determine what caused an accident from the point of view of legal liability is a most difficult task. If there is any valid logical or scientific theory of causation it is quite irrelevant in this connection. In a Court of law this question must be decided as a properly instructed and reasonable jury would decide it...
“The question must be determined by applying common sense to the facts of each particular case. One may find that as a matter of history several people have been at fault and that if any one of them had acted properly the accident would not have happened, but that does not mean that the accident must be regarded as having been caused by the faults of all of them. One must discriminate between those faults which must be discarded as being too remote and those which must not. Sometimes it is proper to discard all but one and to regard that one as the sole cause, but in other cases it is proper to regard two or more as having jointly caused the accident. I doubt whether any test can be applied generally.”
27. In an action for negligence the Plaintiff must allege, and has the burden of proving, that the accident was caused by the negligence on the part of the defendant. That is the issue throughout the trial, and in giving judgment at the end of the trial, the Judge has to decide whether he is satisfied on a balance of probabilities that the accident was caused by the negligence on the part of the defendant, and if he is not satisfied the Plaintiff's action fails, in whole or in part. The formal burden of proof does not shift. But if in the course of the trial there is proved a set of facts which raises a prima facie inference that the accident was caused by the negligence on the part of the Defendants, the issue will be decided in the Plaintiff's favour, to the extent determined by their responsibility for the accident, unless the Defendants by their evidence provide some answer which is adequate to displace the prima facie inference. In this situation there is said to be an evidential burden of proof resting on the Defendants. See Henderson v Henry E Jenkins and Sons [1970]AC 232 at 301 .
28. Apportionment of liability should be according to the degree of fault. In Kenya Power & Lighting Company Ltd v JWK (Suing as father and next-friend of JKW) & Another (Civil Appeal E012 of 2021) [2023] KEHC 1642 (KLR) , L. N Mugambi J posited as follows:
“In apportionment of liability, I am guided by the case of Khambi and Another v Mahithi and Another [1968] EA 70 , where it was held that:
“It is well settled that where a trial Judge has apportioned liability according to the fault of the parties his apportionment should not be interfered with on appeal, save in exceptional cases, as where there is some error in principle or the apportionment is manifestly erroneous, and an appellate Court will not consider itself free to substitute its own apportionment for that made by the trial Judge. ”
29. I am thus wont to find that indeed the rider was substantially to blame for the present accident. The evidence on record places greater responsibility on the rider for the accident, having seen the canter about 100 meters ahead and the motor vehicle 50 meters ahead and still got into a head on collision with the motor vehicle. Based on the evidence, I am inclined to set aside the trial court’s determination on liability and substitute the same with the Appellant shouldering 35% and the Respondent shouldering 65% .
30. The import of the above is that the application dated 21 st July 2026 is declined with no order as to costs.
31. On the third issue, the principle behind the award of special damages is to reimburse the Claimant for actual expenditure incurred as a direct result of the injury or loss suffered. It is equally trite that parties are bound by their pleadings, and a party cannot depart from what has been pleaded without first amending the pleadings in accordance with the law.
32. From the record before me, the Respondent pleaded special damages in the sum of Kshs. 5,550.00 in her plaint. This is the figure that formed the basis of the trial Court's award. The Respondent relied on medical report and copy of record and from the record this figure is accurate. Consequently, the award of Kshs. 5,550.00 as special damages is therefore maintained and upheld.
33. On the fourth issue, The Court of Appeal, pronounced itself succinctly on the principles for disturbing award of damages in Kemfro Africa Ltd v Meru Express Service v A.M Lubia & Another 1957 KLR 27 as follows:
“The principles to be observed by an appellate Court in deciding whether it is justified in distributing the quantum of damages awarded by the trial Judge were held in the Court of Appeal for the former East Africa to be that it must be satisfied that either the Judge in assessing the damages, took into account an irrelevant facts or left out of account a relevant one or that short of this, the amount is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of damages.”
34. The principles which guide the Court in the assessment of damages were laid in In Charles Oriwo Odeyo v Appollo Justus Andabwa & Another [2017] eKLR of damages in a personal injury case. The considerations include but not limited to; -
“1. An award of damages is not meant to enrich the victim but to compensate such victim for the injuries sustained.
2.The award should be commensurable with the injuries sustained.
3.Previous awards in similar injuries sustained are mere guide but each case be treated on its own facts.
4.Previous awards to be taken into account to maintain stability of awards but factors such as inflation should be taken into account.
5.The awards should not be inordinately low or high.”
35. According to the Court of Appeal in Bashir Ahmed Butt v Uwais Ahmed Khan (1982-88) KAR :
“An appellate Court will not disturb an award for general damages unless it is so inordinately high or low as to represent an entirely erroneous estimate. It must be shown that the Judge proceeded on wrong principles, or that he misapprehended the evidence in some material respect and so arrived at a figure which was either inordinately high or low.”
36. Put simply, it is not sufficient for this Court to substitute its own figure merely because it might have awarded a different amount had it been the trial Court. There must be a demonstrable error in principle or a manifestly erroneous assessment. In the case of Catholic Diocese of Kisumu v Sophia Achieng Tete Civil Appeal No. 284 of 2001 [2004] 2 KLR 55 :
“It is trite law that the assessment of general damages is at the discretion of the trial Court and an appellate Court is not justified in substituting a figure of its own for that awarded by the Court below simply because it would have awarded a different figure if it had tried the case at first instance. The appellate Court can justifiably interfere with the quantum of damages awarded by the trial Court only if it is satisfied that the trial Court applied the wrong principles, (as by taking into account some irrelevant factor leaving out of account some relevant one) or misapprehended the evidence and so arrived at a figure so inordinately high or low as to represent an entirely erroneous estimate.”
48.The medical report on record establishes that the Appellant sustained the following injuries as a result of the accident:
a. Fractured midshaft right femur.
b. Fractured right tibia plateau.
c. Multiple cut wounds on the right knee.
d. Frictional burn wounds on the right ankle .
37. Based on the treatment notes, discharge summary from Makindu Sub County Hospital, the P3 Form and the medical report of Dr. Titus Ndeti Nzina dated 7 th September 2021 , the Respondent is stated to have been admitted in hospital for one month and was treated with reduction of the open fractures, and POP was applied. Fixation of metal implants was also done. Analgesics and antibiotics were also administered. At the time of examination, he was still undergoing treatment and could not walk without support. The injuries were classified as grievous harm. The doctor opined that he would not be able to resume his normal duties.
38. In assessing whether the award of Kshs. 1,200,000.00 was appropriate, I must consider comparable awards made in similar circumstances while bearing in mind that no two cases are exactly alike and that awards must reflect current economic realities including inflation. Both parties have cited various authorities in support of their respective positions, and I have carefully considered these authorities alongside others that I find relevant to the assessment.
39. In Ondoto v Kigotho (Civil Appeal E358 of 2023) [2024] KEHC 13223 (KLR ) , the appellant sustained a fracture of the left femur and a fracture of the left tibial plateau, resulting in permanent disability. The trial court awarded Kshs. 1,000,000.00 as general damages and Kshs. 200,000.00 for future medical expenses. On appeal, the High Court enhanced the award for general damages to Kshs. 1,300,000.00 upheld the award of Kshs. 200,000.00 for future medical expenses and maintained liability at 75:25. The Court found that the enhanced award was commensurate with the nature of the injuries and prevailing comparable awards.
40. In Kanyare v Magiri & Another (Civil Appeal E194 of 2024) [2025] KEHC 12554 (KLR ), the respondent sustained a fracture of the femur, a fracture of the tibial plateau, together with other orthopedic injuries. The trial court awarded Kshs. 1,500,000.00 as general damages and Kshs. 300,000.00 for future medical expenses. On appeal, the High Court upheld both awards, holding that they were reasonable and that the future medical expenses had been specifically pleaded and proved.
41. In Kamau & Another v Njuguna (Civil Appeal No. 140 of 2023) [2025] KEHC 12528 (KLR ) , the respondent sustained a fracture of the right femur, a fracture of the tibial plateau, and a fracture of the medial malleolus. The trial court awarded Kshs. 2,200,000.00 as general damages and Kshs. 1,000,000.00 for future medical expenses. On appeal, the High Court upheld the award of Kshs. 2,200,000.00 as general damages but set aside the award for future medical expenses on the ground that it had not been specifically pleaded, notwithstanding the medical evidence recommending future treatment.
42. In Okware v Ndolo (Civil Appeal E1248 of 2024) [2025] KEHC 7762 (KLR ) , the respondent sustained open fractures of the distal tibia and fibula requiring surgical fixation with metallic implants. The trial court awarded Kshs. 1,500,000.00 as general damages. On appeal, the High Court substituted the award with Kshs. 1,000,000.00 as general damages and upheld the award for future medical expenses, finding that the need for future surgery had been established by medical evidence.
43. Having considered the authorities cited by both parties and the comparative awards in similar cases, I am of the view that the trial Court's award of Kshs. 1,200,000.00 as general damages fall within range for injuries of the nature sustained by the Respondent. The injuries as tabulated in the plaint, in addition to the fact that the inability to walk without support and the prognosis by Doctor Ndeti that the Respondent sustained soft tissue injuries and multiple skeletal injuries and that he will be required to remove implants that had been placed once the fractures have adequately united represents substantial pain and suffering warranting adequate compensation.
44. Accordingly, I uphold the trial Court's award of Kshs. 1,200,000.00 on general damages.
45. In respect to future medical expenses, the Appellant also challenges the award of Kshs. 200,000.00 for future medical expenses. The record shows that the Respondent specifically pleaded a claim for future medical expenses and adduced medical evidence demonstrating the necessity for future treatment. The Appellant's own medical report equally confirmed that the Respondent would require removal of the implants and estimated the cost thereof at Kshs. 75,000.00.
46. it is my considered view that the estimate however was not conclusive or binding upon the trial court. Future medical expenses are by their nature prospective and the actual cost of treatment may vary depending on the medical facility the attending specialists the cost of theatre services medication, post-operative care and prevailing economic conditions at the time the treatment is undertaken. The trial court having considered the medical evidence in its entirety, awarded Kshs. 200,000.00 under this head.
47. I am not persuaded that the award was so inordinately high or was based on a wrong principle as to warrant appellate interference. Applying the principles in Tracom Limited & Another v Hassan Mohamed Adan [2009] eKLR , I find that the claim for future medical expenses was properly pleaded and proved, and the award made by the trial court was within the exercise of its discretion. Consequently, the award of Kshs. 200,000.00 for future medical expenses is upheld.
48. On the last issue, the Appellant faulted the trial court for dismissing his counterclaim which he stated was founded on the doctrine of subrogation. I am aware that the said doctrine is an equitable principle which entitles an insurer upon indemnifying its insured, to step into the shoes of the insured and pursue recovery against the party legally responsible for the loss. Subrogation thus allows the insurer, instead of filing a separate suit, especially where the cause of act
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JUDGMENT
Introduction
1. The Respondent/Plaintiff filed a suit at the subordinate court alleging that he sustained injuries on 05/11/2020 following a road traffic accident. He alleged that he was a lawfully riding Motor Cycle Registration Number KMFG 744Z along Wote – Machakos Road when the Appellant drove, managed and/or controlled Motor Vehicle Registration Number KCG 010F negligently and carelessly that he caused it to violently knock down the Plaintiff. As a result, the respondent sustained a fractured midshaft right femur, fractured right tibia plateau, multiple cut wounds on the right knee and a frictional burn wound on the right ankle.
2. The appellant denied the occurrence of the accident and pleaded that if the same did occur, it was attributed to the respondent’s negligence. He further reiterated the same in his counter clam and relied on the principle of subrogation, doctrine of res ipsa loquitor and vicarious liability.
3. At the end of the hearing, the trial magistrate apportioned liability at 70:30 in favour of the Plaintiff, awarded Kshs. 1,200,000.00 as General damages, less 30% liability it becomes Kshs. 840,000.00, Awarded Future Medical expenses of Kshs. 200,000.00 and lastly awarded Special damages of Kshs. 5,550.00
4. Aggrieved by the trial court’s finding, the appellant is challenging the judgment on the following grounds:
a) That the Learned Trial Magistrate erred in law and in fact in failing to find that the Respondent did not discharge his evidential burden of proof of his allegation as is required under Section 107 of the Evidence Act thus arriving at an erroneous finding that the Appellant was to be blamed for the Accident.
b) That the Learned Trial Magistrate erred and misdirected himself in law and in fact and misapplied the evidence of parties on how the accident giving rise to the primary suit occurred thereby arriving at a wrong finding on liability between the Appellant and the Respondent.
c) That the learned trial Magistrates erred in law and in fact by completely failing to consider the Appellant’s evidence and that of his witnesses on liability and submission on proof of negligence hence coming to the erroneous finding on liability of 30% as against the Respondent and 70% as against the Appellant and in effect breaching the Appellant’s constitutional rights of access to justice and fair hearing .
d) That the learned trial magistrate erred in law and in fact in finding that the Respondent was entitled to general damages of Kshs. 1,200,000.00 which was overly excessive, arbitrary, and inordinately high in view of the injuries suffered by the Respondent that it presented a miscarriage of justice.
e) That the learned trial magistrate erred in law and in fact by failing to consider the Appellant’s submission and judicial authorities on quantum thereby arriving at an erroneous figure on quantum .
f) That the learned trial magistrate erred in law and in fact by failing to consider conventional awards for general damages in cases of similar injuries and awarded general damages in for pain and suffering which were excessive and punitive to the Appellant.
g) That the learned trial magistrate erred in law and in fact in relying solely on the Respondent’s medical documents in making an award of Kshs. 200,000.00 future medical costs which was inordinately high and without justification.
h) That the learned trial magistrate erred in law and in fact in dismissing the Appellants’ counterclaim despite the same having been warranted and duly proved in line with section 107 of the Evidence Act and all tenets of the law as regards subrogation claim.
i) That the learned trial magistrate grossly misdirected himself in ignoring the principles applicable and relevant authorities on liability, quantum and subrogation claims cited in the written submissions of the Appellant which are binding upon the court vide the principle of judicial precedents and the doctrine of stare decisis .
j) That the learned trial magistrate erred in law and in fact by failing to consider all the averment made in the Appellant’s pleadings in response to the Plaint, thereby reaching wrong conclusions of the law and fact.
k) That the learned trial magistrate failed to adequately evaluate the evidence and exhibits on record thereby arrived at an unsustainable decision .
5. The appellant while anchoring on the submissions filed in the trial court sought to have the appeal allowed, the judgement of the trial court with regards to the finding on liability and quantum be set aside in its entirety and this court to dismiss the Respondent’s suit with costs while primarily stating that should the Court find the Appellant liable to some extent, then the general damages can be reduced to Kshs. 700,000.00 and the award on future medical expenses be reduced to 75,000.00, and that the revised awards should be subjected to fresh liability apportioned by the court.
6. The Appellant submitted that the Respondent while ferry a passenger attempted to overtake a lorry which was in front of him and ended up colliding head on with the Appellant’s vehicle which was in its lawful lane. Further a witness who testified as DW2 buttressed the above.
7. The Appellant relied on several cases as follows: Mombasa Maize Millers & Another v Elius Kinyua Gicovi [2021] KEHC 1105 (KLR), Mumbi M'Nabea v David M. Wachira [2016] KECA 773 (KLR), Selle and Another v Associated Motor Boat Co. Ltd [1968] EA 123, Peter Omolo v Match Masters Limited [2017] KEHC 2478 & Cecilia W. Mwangi & Another v Ruth W. Mwangi [1997] KECA 62 (KLR )
8. That upon this matter being slated for judgement on the 21 st day of July, 2026 the Appellant moved this Honourable Court with an Application dated the 21 st day of July, 2026 seeking for prayers inter alia that the judgement on liability delivered by Hon. Lady Justice Teresia M. Matheka on 13 th July, 2026 in Makueni HCCA E026 of 2024 Elijah Mwangi Maina vs Dorcas Mbinya Mulwa & 2 Others be applied and adopted as the judgement of Honourable Court on the issue of liability as between the Appellant and Respondent and consequently the liability be apportioned at 25% as against the Appellant and 75% as against the Respondent. It is deponed that the circumstances in both cases arise from the same facts.
9. The Respondent submitted that the Appeal be dismissed with costs and relied on the following authorities Selle v. Associated Motor Boat Co. Ltd, Peters v. Sunday Post Ltd, Mwangi & another v Wambugu [1984] KECA 13 (KLR), Simon Taveta v Mercy Mutitu Njeru [2014] KECA 755 (KLR) , Francis K. Righa v Mary Njeri (Suing as the Legal Representative of the Estate of James Kariuki Nganga [2014] KEHC 3611 (KLR), Equator Distributors v Joel Muriu & 3 Others [2018] KECA 53 (KLR), Savannah Hardware v EOO (Suing As representative of SO (deceased) [2019] KEHC 269 (KLR ) and other case laws which the court has carefully perused.
10. In respect to the recent application filed by the Appellant dated the 21 st July, 2026 the Respondent has filed a Replying Affidavit dated the 22 nd July, 2026 where he opposed the prayers being sought by the Appellant and requested for the dismissal of the said application.
Analysis & Determination
11. This being a first appeal it is the duty of this court to re-assess and re-analyse the evidence that was adduced before the trial court and come to its own Judgment in line with the decision in the case of Selle & Another –vs- Associated Motor Boat Co. Ltd. & Others [1968] EA 123 in the following terms:
“I accept counsel for the respondent’s proposition that this court is not bound necessarily to accept the findings of fact by the court below. An appeal to this court from a trial by the High Court is by way of retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular, this court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally (Abdul Hammed Saif –vs- Ali Mohamed Sholan (1955), 22 E.A.C.A. 270).”
12. I have read through the Record of Appeal dated the 30 th July, 2025 and Supplementary record of Appeal dated the 7 th October, 2025 in consideration of the grounds set out in the Memorandum of Appeal and find the issues for determination being:
a) Whether the application dated the 21 st July, 2026 is proper before the Honourable Court?
b) Whether the apportionment of liability was proper.
c) Whether special damages awarded were based on wrong consideration.
d) Whether the general damages awarded are excessive in the circumstances of this case.
e) Whether the trial court should have considered the doctrine of subrogation relied on by the Appellant in his counter-claim?
13. On the first issue, the application before the Court was filed on the date scheduled for delivery of judgment and seeks an order that this Court adopts the judgment rendered in a separate suit. It is common ground that the proceedings and judgment sought to be adopted do not form part of the record of appeal and that the two matters were never consolidated before the trial court. The law is settled that a first appellate court is confined to determining an appeal on the basis of the record transmitted from the trial court.
14. In Okeno v Republic [1972] EA 32 , the Court held that the duty of a first appellate court is to reconsider and evaluate the evidence that was before the trial court and arrive at its own independent conclusions. Likewise, in Selle & Another v Associated Motor Boat Co. Ltd & Others (Supra ) , the Court emphasized that an appellate court's re-evaluation is limited to the evidence on the record.
15. The position has recently been reaffirmed in Be Energy Limited v Dorine Emily Akinyi Okeno t/a Regold Etipet Enterprises (Civil Appeal E213 of 2023) [2024] KEHC 7616 (KLR ) , where the High Court held that an appeal is determined on the record before the appellate court and that material not forming part of the proceedings in the subordinate court can only be introduced in accordance with Section 78 of the Civil Procedure Act and Order 42 Rule 27 of the Civil Procedure Rules .
16. The Supreme Court in Mohamed Abdi Mahamud v Ahmed Abdullahi Mohamed & 3 Others [2018] eKLR further held that additional evidence on appeal is only admissible in exceptional circumstances and should not be used to fill gaps in a party's case or introduce a fresh case on appeal.
17. In the present case, the applicant has not sought leave to adduce additional evidence in accordance with the law, nor has the statutory threshold been demonstrated. Instead, the Court is invited to adopt a judgment rendered in a separate proceeding whose pleadings, evidence and proceedings are absent from the record of appeal.
18. The adoption of the determination in HCCA No. E026 of 2024, as is would present a major challenge and hurdle to the just determination of the appeal before this court. It cannot be gainsaid that this appeal ought to have been presented before the appellate court in HCCA No. E026 of 2024, so that the court would have the benefit of considering the evidence together. That would have permitted the appellate court to consider whether to consolidate the appeals and consider the respective evidence in totality and make an appropriate finding.
19. As stated by the Respondent, the pillion passenger is the Plaintiff and witness in HCCA No. E026 of 2024. The rider who is the Respondent was the Plaintiff in HCCA No. E051 of 2024. Interestingly, the rider did not give evidence in support of the passenger and the passenger equally never gave evidence in the suit filed by the rider. The trial court, though the same, but proceeding differently made its determination, attributing 30% liability upon the rider and 70% liability upon the driver of the motor vehicle.
20. It is thus certain that though the trial court arrived at the same liability on the two suits, the evidence adduced was not the same. As already alluded to herein above, the Record of Appeal and judgment the subject of this appeal revolves around the proceedings leading to HCCA No. E051 of 2024 only. To then proceed and adopt the outcome in HCCA No. E026 of 2024 would be convenient but improper as this court would have determined the appeal on the basis of the evidence not before it.
21. The question that the court in this matter needs to determine is whether to be guided by the determination made by my sister in the file HCCA No. E026 of 2024 and to apply the same reasoning in the present appeal. During the brief submissions made by the parties herein after the filing of the Notice of Motion dated 21 st July 2026, the Respondents Advocates vehemently opposed the adoption of the liability by the appeal court in HCCA No. E026 of 2024 to apply to this matter and specially because the parties in the matters are different and did not testify in both matters.
22. In addition, the two appeals relate to the same accident. The trial court considered the circumstances in the two matters and came to the same determination on liability. Both files have now become the subject of separate appellate proceedings.
23. Secondly, I have also taken note of the proceedings and evaluation of the facts of the accident that gave rise to the present suits. The appellate court took time re-evaluate the evidence adduced before the trial court and made a determination that liability be apportioned in the ratio of 25:75 in favour of the Defendant in the suit the subject of the appeal in HCCA No. E026 of 2024 . The present Appellant is also the Appellant in HCCA No. E026 of 2024 . The Plaintiff in CMCC No. E156 of 2021 , was the pillion passenger on the motor cycle driven by the present Respondent, who was the Plaintiff in CMCC No. E154 of 2021 . The present Plaintiff was found to be 30% responsible in the primary suit and the Defendant, the driver of the motor vehicle was held 70% liable. The appeal proceedings in HCCA No. E026 of 2026 have thus flipped the responsibility upon the Respondent, from 30% to 75%.
24. Be that as it may, I have considered the evidence of the Respondent in the primary suit. He states that he was riding motor cycle registration number KMFG 744Z on 3 rd November 2020 along the road headed to Wote town from Mukuyuni. It was on a straight stretch of the road. A lorry was from the opposite direction and he saw it about 100 meters away. It was at 6.30 pm and his lights were on. It was not dark as yet. He then saw the motor vehicle that overtook the lorry about 50 meters before the accident occurred. He tried to swerve to avoid the accident. The police abstract prepared after the accident showed he was blamed for the accident had he was to be charged for causing the accident. At the time of the trial however, the police officer who testified stated that the matter was still pending under investigations.
25. I have also considered the evidence of the defence, especially DW2. The said evidence shows that the Respondent caused the accident while attempting to overtake another unknown motor vehicle. The Officer thus blamed the rider for the accident.
26. In determining liability in road traffic accident, I am guided by the rationale in the Court of Appeal case of Michael Hubert Kloss & Another v David Seroney & 5 Others [2009] eKLR , where the court stated thus:
“The determination of liability in a road traffic case is not a scientific affair. Lord Reid put it more graphically in Stapley v Gypsum Mines Ltd (2) (1953) AC 663 at p. 681 as follows:
“To determine what caused an accident from the point of view of legal liability is a most difficult task. If there is any valid logical or scientific theory of causation it is quite irrelevant in this connection. In a Court of law this question must be decided as a properly instructed and reasonable jury would decide it...
“The question must be determined by applying common sense to the facts of each particular case. One may find that as a matter of history several people have been at fault and that if any one of them had acted properly the accident would not have happened, but that does not mean that the accident must be regarded as having been caused by the faults of all of them. One must discriminate between those faults which must be discarded as being too remote and those which must not. Sometimes it is proper to discard all but one and to regard that one as the sole cause, but in other cases it is proper to regard two or more as having jointly caused the accident. I doubt whether any test can be applied generally.”
27. In an action for negligence the Plaintiff must allege, and has the burden of proving, that the accident was caused by the negligence on the part of the defendant. That is the issue throughout the trial, and in giving judgment at the end of the trial, the Judge has to decide whether he is satisfied on a balance of probabilities that the accident was caused by the negligence on the part of the defendant, and if he is not satisfied the Plaintiff's action fails, in whole or in part. The formal burden of proof does not shift. But if in the course of the trial there is proved a set of facts which raises a prima facie inference that the accident was caused by the negligence on the part of the Defendants, the issue will be decided in the Plaintiff's favour, to the extent determined by their responsibility for the accident, unless the Defendants by their evidence provide some answer which is adequate to displace the prima facie inference. In this situation there is said to be an evidential burden of proof resting on the Defendants. See Henderson v Henry E Jenkins and Sons [1970]AC 232 at 301 .
28. Apportionment of liability should be according to the degree of fault. In Kenya Power & Lighting Company Ltd v JWK (Suing as father and next-friend of JKW) & Another (Civil Appeal E012 of 2021) [2023] KEHC 1642 (KLR) , L. N Mugambi J posited as follows:
“In apportionment of liability, I am guided by the case of Khambi and Another v Mahithi and Another [1968] EA 70 , where it was held that:
“It is well settled that where a trial Judge has apportioned liability according to the fault of the parties his apportionment should not be interfered with on appeal, save in exceptional cases, as where there is some error in principle or the apportionment is manifestly erroneous, and an appellate Court will not consider itself free to substitute its own apportionment for that made by the trial Judge. ”
29. I am thus wont to find that indeed the rider was substantially to blame for the present accident. The evidence on record places greater responsibility on the rider for the accident, having seen the canter about 100 meters ahead and the motor vehicle 50 meters ahead and still got into a head on collision with the motor vehicle. Based on the evidence, I am inclined to set aside the trial court’s determination on liability and substitute the same with the Appellant shouldering 35% and the Respondent shouldering 65% .
30. The import of the above is that the application dated 21 st July 2026 is declined with no order as to costs.
31. On the third issue, the principle behind the award of special damages is to reimburse the Claimant for actual expenditure incurred as a direct result of the injury or loss suffered. It is equally trite that parties are bound by their pleadings, and a party cannot depart from what has been pleaded without first amending the pleadings in accordance with the law.
32. From the record before me, the Respondent pleaded special damages in the sum of Kshs. 5,550.00 in her plaint. This is the figure that formed the basis of the trial Court's award. The Respondent relied on medical report and copy of record and from the record this figure is accurate. Consequently, the award of Kshs. 5,550.00 as special damages is therefore maintained and upheld.
33. On the fourth issue, The Court of Appeal, pronounced itself succinctly on the principles for disturbing award of damages in Kemfro Africa Ltd v Meru Express Service v A.M Lubia & Another 1957 KLR 27 as follows:
“The principles to be observed by an appellate Court in deciding whether it is justified in distributing the quantum of damages awarded by the trial Judge were held in the Court of Appeal for the former East Africa to be that it must be satisfied that either the Judge in assessing the damages, took into account an irrelevant facts or left out of account a relevant one or that short of this, the amount is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of damages.”
34. The principles which guide the Court in the assessment of damages were laid in In Charles Oriwo Odeyo v Appollo Justus Andabwa & Another [2017] eKLR of damages in a personal injury case. The considerations include but not limited to; -
“1. An award of damages is not meant to enrich the victim but to compensate such victim for the injuries sustained.
2.The award should be commensurable with the injuries sustained.
3.Previous awards in similar injuries sustained are mere guide but each case be treated on its own facts.
4.Previous awards to be taken into account to maintain stability of awards but factors such as inflation should be taken into account.
5.The awards should not be inordinately low or high.”
35. According to the Court of Appeal in Bashir Ahmed Butt v Uwais Ahmed Khan (1982-88) KAR :
“An appellate Court will not disturb an award for general damages unless it is so inordinately high or low as to represent an entirely erroneous estimate. It must be shown that the Judge proceeded on wrong principles, or that he misapprehended the evidence in some material respect and so arrived at a figure which was either inordinately high or low.”
36. Put simply, it is not sufficient for this Court to substitute its own figure merely because it might have awarded a different amount had it been the trial Court. There must be a demonstrable error in principle or a manifestly erroneous assessment. In the case of Catholic Diocese of Kisumu v Sophia Achieng Tete Civil Appeal No. 284 of 2001 [2004] 2 KLR 55 :
“It is trite law that the assessment of general damages is at the discretion of the trial Court and an appellate Court is not justified in substituting a figure of its own for that awarded by the Court below simply because it would have awarded a different figure if it had tried the case at first instance. The appellate Court can justifiably interfere with the quantum of damages awarded by the trial Court only if it is satisfied that the trial Court applied the wrong principles, (as by taking into account some irrelevant factor leaving out of account some relevant one) or misapprehended the evidence and so arrived at a figure so inordinately high or low as to represent an entirely erroneous estimate.”
48.The medical report on record establishes that the Appellant sustained the following injuries as a result of the accident:
a. Fractured midshaft right femur.
b. Fractured right tibia plateau.
c. Multiple cut wounds on the right knee.
d. Frictional burn wounds on the right ankle .
37. Based on the treatment notes, discharge summary from Makindu Sub County Hospital, the P3 Form and the medical report of Dr. Titus Ndeti Nzina dated 7 th September 2021 , the Respondent is stated to have been admitted in hospital for one month and was treated with reduction of the open fractures, and POP was applied. Fixation of metal implants was also done. Analgesics and antibiotics were also administered. At the time of examination, he was still undergoing treatment and could not walk without support. The injuries were classified as grievous harm. The doctor opined that he would not be able to resume his normal duties.
38. In assessing whether the award of Kshs. 1,200,000.00 was appropriate, I must consider comparable awards made in similar circumstances while bearing in mind that no two cases are exactly alike and that awards must reflect current economic realities including inflation. Both parties have cited various authorities in support of their respective positions, and I have carefully considered these authorities alongside others that I find relevant to the assessment.
39. In Ondoto v Kigotho (Civil Appeal E358 of 2023) [2024] KEHC 13223 (KLR ) , the appellant sustained a fracture of the left femur and a fracture of the left tibial plateau, resulting in permanent disability. The trial court awarded Kshs. 1,000,000.00 as general damages and Kshs. 200,000.00 for future medical expenses. On appeal, the High Court enhanced the award for general damages to Kshs. 1,300,000.00 upheld the award of Kshs. 200,000.00 for future medical expenses and maintained liability at 75:25. The Court found that the enhanced award was commensurate with the nature of the injuries and prevailing comparable awards.
40. In Kanyare v Magiri & Another (Civil Appeal E194 of 2024) [2025] KEHC 12554 (KLR ), the respondent sustained a fracture of the femur, a fracture of the tibial plateau, together with other orthopedic injuries. The trial court awarded Kshs. 1,500,000.00 as general damages and Kshs. 300,000.00 for future medical expenses. On appeal, the High Court upheld both awards, holding that they were reasonable and that the future medical expenses had been specifically pleaded and proved.
41. In Kamau & Another v Njuguna (Civil Appeal No. 140 of 2023) [2025] KEHC 12528 (KLR ) , the respondent sustained a fracture of the right femur, a fracture of the tibial plateau, and a fracture of the medial malleolus. The trial court awarded Kshs. 2,200,000.00 as general damages and Kshs. 1,000,000.00 for future medical expenses. On appeal, the High Court upheld the award of Kshs. 2,200,000.00 as general damages but set aside the award for future medical expenses on the ground that it had not been specifically pleaded, notwithstanding the medical evidence recommending future treatment.
42. In Okware v Ndolo (Civil Appeal E1248 of 2024) [2025] KEHC 7762 (KLR ) , the respondent sustained open fractures of the distal tibia and fibula requiring surgical fixation with metallic implants. The trial court awarded Kshs. 1,500,000.00 as general damages. On appeal, the High Court substituted the award with Kshs. 1,000,000.00 as general damages and upheld the award for future medical expenses, finding that the need for future surgery had been established by medical evidence.
43. Having considered the authorities cited by both parties and the comparative awards in similar cases, I am of the view that the trial Court's award of Kshs. 1,200,000.00 as general damages fall within range for injuries of the nature sustained by the Respondent. The injuries as tabulated in the plaint, in addition to the fact that the inability to walk without support and the prognosis by Doctor Ndeti that the Respondent sustained soft tissue injuries and multiple skeletal injuries and that he will be required to remove implants that had been placed once the fractures have adequately united represents substantial pain and suffering warranting adequate compensation.
44. Accordingly, I uphold the trial Court's award of Kshs. 1,200,000.00 on general damages.
45. In respect to future medical expenses, the Appellant also challenges the award of Kshs. 200,000.00 for future medical expenses. The record shows that the Respondent specifically pleaded a claim for future medical expenses and adduced medical evidence demonstrating the necessity for future treatment. The Appellant's own medical report equally confirmed that the Respondent would require removal of the implants and estimated the cost thereof at Kshs. 75,000.00.
46. it is my considered view that the estimate however was not conclusive or binding upon the trial court. Future medical expenses are by their nature prospective and the actual cost of treatment may vary depending on the medical facility the attending specialists the cost of theatre services medication, post-operative care and prevailing economic conditions at the time the treatment is undertaken. The trial court having considered the medical evidence in its entirety, awarded Kshs. 200,000.00 under this head.
47. I am not persuaded that the award was so inordinately high or was based on a wrong principle as to warrant appellate interference. Applying the principles in Tracom Limited & Another v Hassan Mohamed Adan [2009] eKLR , I find that the claim for future medical expenses was properly pleaded and proved, and the award made by the trial court was within the exercise of its discretion. Consequently, the award of Kshs. 200,000.00 for future medical expenses is upheld.
48. On the last issue, the Appellant faulted the trial court for dismissing his counterclaim which he stated was founded on the doctrine of subrogation. I am aware that the said doctrine is an equitable principle which entitles an insurer upon indemnifying its insured, to step into the shoes of the insured and pursue recovery against the party legally responsible for the loss. Subrogation thus allows the insurer, instead of filing a separate suit, especially where the cause of act
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